“In considering the issues before it the SCA had to make an enquiry, which was whether the publication of personal information in certain Facebook posts was protected by the right to freedom of expression,” said independent tax and legal firm Andersen.

The case

The case centred on a photograph taken by a cyclist on a farm in the Eastern Cape.

On 23 September 2019, whilst traversing the farm in an adventure ride, the cyclist noticed two cages containing a dead baboon and a dead porcupine. The cyclist noticed oranges near the baboon and surmised that the animals had died as a result of dehydration whilst trapped in the cages.

The conclusion was also supported by the positioning of the cages in an area where there was no shade and water.

The cyclist captured the images and furnished them to a wildlife conservationist, who subsequently posted the images on Facebook, naming the owner of the farm, his profession and his address.

The post generated several comments mostly in condemnation of the owner’s practice of trapping animals. The owner defended his position by stating that he had a valid permit to hunt, capture and/or kill baboons and porcupines.

Application to the High Court 

As a result of the negative publicity generated by the post, the owner initiated an application for an interim interdict in the High Court against the conservationist, seeking the removal of the photographs and certain portions of the Facebook post that made reference to his business, location, and the name of the farm. The interim interdict was granted.

“The High Court found that whilst the conservationist was entitled to publish the photographs and to comment on them, he was not entitled to publish the fact that the photographs were taken on a farm belonging to the owner,” Andersen said.

“The High Court reasoned that the name of the farm and the owner’s identity constituted personal information protected by his right to privacy and that there was no compelling public interest in the disclosure of the personal information.”

The finding in favour of the owner led to an appeal in the Supreme Court of Appeal by the conservationist.

SCA findings 

In summary, the Supreme Court of Appeal made three significant findings, said Andersen.

• Firstly, it found that the High Court erred in disregarding the content of the conservationist’s post and focusing on the response by members of the public. The Supreme Court of Appeal lamented the High Court’s approach as having far-reaching implications because it stifles the debate and censors the activists’ right to disseminate information to the public. The SCA added that it denies citizens the right to receive information and engage in a platform for the exchange of ideas, which is crucial to the development of a democratic culture.

• Secondly, the Supreme Court of Appeal found that the High Court’s findings interfere with the right to freedom of expression and fails to strike a proper balance between personal information and the right to privacy.

• Thirdly, the Supreme Court of Appeal found that the High Court failed to recognise that publicising the truth about the farm owner’s animal trapping activities, to which the public have access and interest, does not violate his right to privacy.

The importance of the findings made by the Supreme Court of Appeal cannot be overstated, said Andersen.

“Whilst it may be argued that the protection of personal information is a fundamental right – more particularly in times where various social media platforms continue to face scrutiny in terms of their privacy policies and where certain legislation has come into effect to prevent the abuse of personal information – the judgment appropriately balances two competing rights; namely, the right to freedom of expression and the right to privacy.

“In this instance, the personal information sought to be protected by the farm owner could be found in the Deeds office and on Google – therefore any claim that the information should remain private in those circumstances would be, as found by the SCA, conceptually flawed.”

In conclusion, the right to freedom of expression and the right to privacy are mutually reinforcing rights, Andersen said.

“The tension between the two rights is exacerbated by social media platforms. In the event that these rights are in conflict, a careful balance must be made in order to ensure that the rights are protected.”

• Commentary by John Mankoe, and Christopher Majuru of legal firm Andersen.